*Of the District of New Hampshire, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 01-2600

LAUREL CASEY and ASTERIX AND OBELIX, LLC,

Plaintiffs, Appellants,

v.

CITY OF NEWPORT, RHODE ISLAND

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and McAuliffe,* District Judge.

Thomas W. Kelly for Appellants.

Marc DeSisto for Appellee.

October 16, 2002
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LIPEZ, Circuit Judge. This case requires us to assess

the constitutionality of restrictions imposed by the City of

Newport, Rhode Island (City), on the performance of music at

Asterix and Obelix (A&O), a Newport restaurant/nightclub. The

district court rejected a First Amendment challenge to the

restrictions mounted by A&O and Laurel Casey, a cabaret singer who

performs at A&O, and entered summary judgment for the City on the

ground that the restrictions were narrowly tailored to serve a

significant governmental interest. Concluding that the district

court's narrow-tailoring decision lacks support in the record, we

vacate the judgment and remand for further proceedings.

I.

A&O is located at 599 Thames Street in Newport. The

property is zoned "limited business" and abuts a residential

neighborhood. In June of 1998 A&O was granted an entertainment

license permitting musical performances, pursuant to Newport, R.I.,

Ordinances ch. 5.68 (Public Entertainment). The word "None" was

typed next to the word "Amplification" on the approved application.

On June 4, 1999, Casey performed at A&O with her voice amplified,

accompanied by an amplified bass and an unamplified piano. That

evening A&O was cited for violating the City's noise ordinance.

Newport, R.I., Ordinances ch. 8.12 (Noise Abatement) (setting

maximum decibel level of 75 for districts zoned "limited

business"). Casey explained the events which gave rise to the
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violation of the noise ordinance at a City Council hearing on June

9:

Now, to tell you the truth, it was my fault

last Friday that we went over the . . . Noise

Ordinance. A person in the audience requested

that I sing from an operetta and I began to

sing a portion of Rinaldo. There are several

high notes that go above high note C in

R[i]naldo and it was those high notes

apparently that shot us off the scale. 

The complaint against A&O was subsequently dismissed. As far as

the record reveals, A&O was not cited for violating the terms of

its entertainment license. 

On June 9, 1999, the City Council held a hearing on A&O's

application for a renewed license that would permit amplification.

Residents of the neighborhood voiced displeasure with the noise

emanating from A&O during musical performances. The Council voted

to renew A&O's entertainment license, but with the no-amplification

restriction still in place, and with an added prohibition against

singing (whether amplified or not). 

On June 18, 1999, Casey filed a complaint against the

City in federal district court seeking declaratory and injunctive

relief and damages under 42 U.S.C. § 1983 on the ground that the

no-singing and no-amplification restrictions violated her right to

free expression under the First Amendment. On June 23, 1999, the

Council removed the no-singing restriction, which it had imposed in

the mistaken belief that A&O's previous license had included the
1 The Council had intended on June 9 simply to deny A&O's

application to expand its previous license. On June 23 the Council

concluded that to permit singing would not constitute an expansion

of the license, and therefore removed the no-singing restriction.

2 Appellants do not object to this requirement.

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same restriction.1 The no-amplification restriction, however,

remained in force. The Council also required that A&O keep its

doors and windows closed during musical performances.2 A First

Amended Complaint was filed on July 9, 1999, adding A&O as a

plaintiff. 

On May 1, 2000, the Council again renewed A&O's

entertainment license, this time with amplification of singing

allowed, but amplification of musical instruments forbidden. A

Second Amended Complaint filed on July 31, 2000, added a count

challenging the ban on amplification of instruments effective as of

June 2000. After the parties filed cross-motions for summary

judgment, the district court granted summary judgment for the City

on October 24, 2001, holding that the challenged restrictions were

valid time, place, and manner regulations that did not infringe

upon the plaintiffs' First Amendment rights. Plaintiffs filed this

timely appeal in which they ask us to vacate the judgment of the

district court and order the entry of a judgment declaring that the

City's license restrictions are unconstitutional, enjoining their

enforcement, and leaving the question of damages for the district

court on remand.
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II.

We review the district court's grant of summary judgment

for the City de novo, examining the record in the light most

favorable to Casey and A&O and drawing all reasonable inferences in

their favor. We affirm the district court's decision only if

"there is no genuine issue of material fact" and the City "is

entitled to judgment as a matter of law." See Knights of Columbus,

Council #94 v. Town of Lexington, 272 F.3d 25, 30 (1st Cir. 2001).

Here we focus on the legal question of whether the challenged

restrictions violate the First Amendment. See id.

"Music, as a form of expression and communication, is

protected under the First Amendment." Ward v. Rock Against Racism,

491 U.S. 781, 790 (1989). Expression need not include words to

qualify for First Amendment protection. The Supreme Court has said

that "a narrow, succinctly articulable message is not a condition

of constitutional protection, which if confined to expressions

conveying a 'particularized message,' would never reach the

unquestionably shielded painting of Jackson Pollock, music of

Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." Hurley

v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,

515 U.S. 557, 569 (1995) (citation omitted). Thus it is not just

Casey's verbal expression, but also the musical sound she and her

band produce, that is protected under the First Amendment. 
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Nevertheless, "the government may impose reasonable

restrictions on the time, place, or manner of protected speech," if

those restrictions are (1) content neutral; (2) narrowly tailored

to serve a significant governmental interest; and (3) leave open

ample alternative channels of communication. Ward, 491 U.S. at

791. We have described our review under this standard as

"intermediate scrutiny." Nat'l Amusements, Inc. v. Town of Dedham,

43 F.3d 731, 736 (1st Cir. 1995). Intermediate scrutiny is "more

demanding than the 'rational basis' standard that is often used to

gauge the constitutionality of economic regulations," id., but less

rigorous than strict scrutiny, where we inquire "whether a

regulation 'is necessary to serve a compelling state interest and

is narrowly drawn to achieve that end.'" Id. (quoting Arkansas

Writers' Project Inc. v. Ragland, 481 U.S. 221, 231 (1987)). If a

regulation of speech is not narrowly tailored to serve a

significant governmental interest, it cannot be deemed

constitutional. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

668 (1994) (vacating district court decision that content-neutral

regulation of speech was constitutional because facts in the record

failed to establish that narrow-tailoring requirement was met).

The burden of proof is on the City to demonstrate that its

restrictions on speech are narrowly tailored. See Board of

Trustees v. Fox, 492 U.S. 469, 480 (1989) ("[S]ince the State bears
3 Because plaintiffs are seeking damages, their challenges to

restrictions that are no longer in effect (the no-singing and noamplification restrictions) are not moot. See City of Richmond v.

J.A. Croson Co., 488 U.S. 469, 478 n.1 (1989) (noting that

expiration of ordinance does not moot controversy because

plaintiffs may be entitled to damages if City's conduct pursuant to

ordinance was unlawful). As far as the record reveals, the noamplification-of-instruments restriction remains in force.

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the burden of justifying its restrictions, it must affirmatively

establish the reasonable fit we require.") (citation omitted).

The district court held that the challenged restrictions

were permissible under the Ward test. Although chronologically the

first restriction imposed on performers at A&O was the ban on

singing, we think it makes more sense to begin our legal analysis

with the no-amplification and no-amplification-of-instruments

restrictions. We deal with the no-singing restriction last.3 

A. No Amplification

1. Content Neutrality

The Supreme Court has said that "[t]he principal inquiry

in determining content neutrality . . . is whether the government

has adopted a regulation of speech because of disagreement with the

message it conveys. The government's purpose is the controlling

consideration." Ward, 491 U.S. at 791 (citation omitted). Thus a

regulation that has a disparate effect on different styles of music

may nevertheless be considered content neutral if the intent behind

the regulation is unrelated to content. The district court found

that "[t]he [City's] clear objective in imposing the [no-
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amplification] restriction was to reduce noise . . . , a purpose

unrelated to the content of the message [appellants] sought to

convey." There being no suggestion in the record that the noamplification restriction was motivated by the content of Casey's

performances, the restriction qualifies as content neutral.

2. Narrow Tailoring

On the question of narrow tailoring, the district court

found that the no-amplification restriction in force between June

of 1999 and June of 2000 (banning amplification of both singing and

instruments) "serves defendants' articulated interest" in noise

reduction, and that without the restriction, "the City would be

unable to control effectively the volume of music, amplified or

unamplified, emanating from [A&O]." The court then declared that

the no-amplification restriction "does not burden more speech than

necessary," and that "plaintiffs could still convey their

respective messages, but . . . without the aid of an amplifier."

In sum, the district court found that the City could not have

achieved the desired reduction in noise without imposing the noamplification restriction, and that the restriction did not burden

substantially more speech than was necessary to achieve the City's

objective.

In analyzing the district court's conclusions regarding

narrow tailoring, we are guided by the Supreme Court's opinion in

Ward and our opinion in Globe Newspaper Co. v. Beacon Hill
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Architectural Commission, 100 F.3d 175 (1st Cir. 1996).

Accordingly, we begin with a review of those opinions.

a. Ward

In Ward, the plaintiffs had challenged New York City's

requirement that performers on a city concert stage in Central Park

use amplification equipment and a sound technician supplied by the

city. 491 U.S. at 784. The Court of Appeals had invalidated the

requirement, holding that the city's sound-amplification guideline

was not narrowly tailored to further the city's interest in

limiting the sound emanating from the city's stage because "it has

not [been] shown ... that the requirement of the use of the city's

sound system and technician was the least intrusive means of

regulating the volume." Id. at 797 (quoting Rock Against Racism v.

Ward, 848 F.2d 367, 371 (2d Cir. 1988)) (emphasis in original).

The Supreme Court emphatically rejected this "least intrusive

means" test: "our cases quite clearly hold that restrictions on the

time, place, or manner of protected speech are not invalid 'simply

because there is some imaginable alternative that might be less

burdensome on speech.'" 491 U.S. at 797 (quoting United States v.

Albertini, 472 U.S. 675, 689 (1985)).

The Court then went on to reaffirm the applicable narrowtailoring standard, stating first that "the requirement of narrow

tailoring is satisfied so long as the ... regulation promotes a

substantial government interest that would be achieved less
4 Without this qualification, the Court's first statement

about the requirement of narrow tailoring ("the requirement of

narrow tailoring is satisfied so long as the ... regulation

promotes a substantial government interest that would be achieved

less effectively absent the regulation") would be little more than

a requirement that the regulation at issue be rationally related to

the identified interest. To say that a regulation promotes a

substantial government interest is tantamount to saying that the

government interest would be achieved less effectively absent the

regulation. Therefore, if this first statement were the extent of

the test for narrow tailoring, it would be an extraordinarily easy

one to pass. A regulation would have to be irrational -- that is,

fail entirely to promote the interests it was designed to promote

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effectively absent the regulation." Ward, 491 U.S. at 799

(internal quotation marks omitted). As the dissent notes, we have

cited this statement in some of our own First Amendment cases. See

Knights of Columbus v. Town of Lexington, 272 F.3d 25, 33 (1st Cir.

2001); Nat'l Amusements, 43 F.3d at 744. However, as we recognized

in Globe Newspaper, 100 F.3d at 189-90, see infra, this statement

cannot be separated from the Supreme Court's own qualification of

the meaning of this statement, set forth in Ward:

To be sure, this standard does not mean that a

time, place, or manner regulation may burden

substantially more speech than is necessary to

further the government's legitimate interests.

Government may not regulate expression in such

a manner that a substantial portion of the

burden on speech does not serve to advance its

goals. So long as the means chosen are not

substantially broader than necessary to

achieve the government's interest, however,

the regulation will not be invalid simply

because a court concludes that the

government's interest could be adequately

served by some less-speech-restrictive

alternative.

Ward, 491 U.S. at 799-800 (emphasis added) (citations omitted).4
--- not to surmount this low hurdle. Recognizing that "narrowly

tailored" must mean something more than non-irrational, the Court

went on to articulate an additional requirement.

5 Indeed, when the Supreme Court has cited the Ward narrowtailoring test in subsequent cases, it has included this important

qualification. See Turner Broad., 520 U.S. at 213; United States

v. Edge Broad. Co., 509 U.S. 418, 430 (1993).

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To demonstrate the importance of this qualification,5 the

Court went on in Ward to explain why the city's sound amplification

guideline was not "substantially broader than necessary to achieve

the government's interest." It noted that "[i]f the city's

regulatory scheme had a substantial deleterious effect on the

ability of bandshell performers to achieve the quality of sound

they desired, [plaintiff's] concerns would have considerable

force." Id. at 801. It emphasized that the district court had

found that the City's sound technician "give[s] the sponsor

autonomy with respect to the sound mix . . . [and] does all that he

can to accommodate the sponsor's desires in those regards." Id.

at 802 (internal quotation marks omitted). Moreover, the Court

found no evidence that the City's technician was unable to

implement properly the performers' instructions regarding sound

quality or mixing. In light of those findings, the Court concluded

that "the city's guideline [requiring that performers use the

City's amplification equipment and sound technician] has no

material impact on any performer's ability to exercise complete

artistic control over sound quality." Id. Thus, the Court held
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that the guideline satisfied the requirement of narrow tailoring

because it was "not substantially broader than necessary to achieve

the city's legitimate ends." Id. (internal quotation marks

omitted).

b. Globe Newspaper

In Globe Newspaper, we acknowledged that Ward's "not

substantially broader than necessary" requirement is part of the

test for narrow tailoring. A Beacon Hill Architectural Commission

regulation banned street furniture, including newspaper boxes, in

Boston's historic Beacon Hill neighborhood. The district court had

held that the regulation violated the First Amendment because the

Commission had "shown no reason why its interest in preserving the

architectural and historic character of the [neighborhood] cannot

be met by, for example, subjecting newsracks and other street

furniture to the same review process as store-front merchandise

racks." Globe Newspaper, 100 F.3d at 188 (internal quotation marks

omitted).

We reversed on the ground that the regulation promoted a

substantial government interest in aesthetics that would have been

achieved less effectively absent the regulation, and that it did so

without burdening substantially more speech than necessary. Id. at

188-89. We explained that

[w]hile the district court correctly

considered the fact that less-burdensome

alternatives exist, it [gave] too much weight

to that fact alone. In so doing, it
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essentially discount[ed] from the equation

Ward's inquiry into whether the [regulation]

promotes the Commission's interests such that

they would be achieved less effectively absent

the [regulation]. 

Id. at 189 (internal quotation marks and alterations omitted).

Importantly, however, we declared that "less-burdensome

alternatives must be considered in connection with the inquiry into

whether, absent the challenged regulation, the government's

interests are achieved less effectively," and cautioned that

"courts are not merely to defer to the government's subjective

judgment." Id. at 190 (emphasis added).

We observed in Globe Newspaper that while the Commission

"could have adopted a less drastic solution," it had "carefully

calculated the costs and benefits" associated with potential

solutions to the problem of street furniture. Id. We concluded

that "[t]he path [the Commission] chose to follow -- eliminating

the newsracks altogether -- [was] the most effective solution aimed

at reducing visual clutter and preserving the [neighborhood's]

historic character." Id. In other words, while not engaging in a

least-restrictive means analysis, we emphasized that the Commission

had weighed the alternatives before it, and we pointed out that an

obvious alternative to the ban on street furniture -- requiring

that newsracks be designed to "blend in" to the neighborhood --

would have been less effective in achieving the Commission's anticlutter objective than an outright ban. Id. at 190-91. For our
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purposes, the essential point is that we emphasized in Globe

Newspaper that the narrow-tailoring test requires the district

court to consider whether the regulation challenged on First

Amendment grounds sweeps more broadly than necessary to promote the

government's interest. That consideration, in turn, cannot be done

without some evaluation of the alternative measures put in issue by

the parties.

c. The District Court's Rationale

As explained supra, the district court found the ban on

amplification narrowly tailored because (1) the restriction serves

the City's interest in noise reduction; (2) this objective could

not be achieved without the restriction; (3) the restriction does

not burden more speech than necessary; and (4) Casey could still

convey her message, but without the aid of an amplifier. Although

we conclude that the record supports the district court's first

proposition -- that the restriction advanced the City's interest in

noise reduction -- it does not support the other three. Thus, the

district court overlooked Ward's requirement that the means chosen

cannot be "substantially broader than necessary to achieve the

government's interest." 491 U.S. at 800.

i. The Restriction Serves the City's Interest in Noise Reduction

We agree with the district court that the ban on

amplification serves the City's interest in noise reduction, as it

limits the volume of noise performers can generate to the sound-
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production capacity of their unamplified voices and instruments.

The restriction was implemented to protect residential neighbors of

A&O, and the Supreme Court has recognized that the government has

"a substantial interest in protecting its citizens from unwelcome

noise," an interest that is "perhaps at its greatest when

government seeks to protect the well-being, tranquility, and

privacy of the home." Id. at 796 (internal quotation marks

omitted). Nevertheless, as we have explained, the mere fact that

the ban on amplification serves the City's interest in noise

reduction is not enough to satisfy the narrow-tailoring

requirement. 

ii. The City's Objective Could Not Be Achieved 

Without the Restriction 

The district court stated that without the noamplification restriction, "the City would be unable to control

effectively the volume of music . . . emanating from [A&O]." This

statement implies that less-burdensome alternatives to the ban on

amplification do not exist. But the record does not support the

district court's assertion. Casey and A&O suggest that the City's

noise-reduction objective could be achieved by enforcement of the

City's noise ordinance. See Newport, R.I., Ordinances ch. 8.12

(Noise Abatement) (setting maximum decibel level of 75 for

districts zoned "limited business"). This may or may not be so.

However, as a matter of logic, reliance on the noise ordinance

would be less restrictive than a total ban on amplification because
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it would permit the use of amplifiers at levels that did not exceed

the decibel limit set in the noise ordinance. Yet the City did not

explain why it could not have relied on this less-burdensome

alternative to the no-amplification restriction. See Globe

Newspaper, 100 F.3d at 190-91.

iii. The Restriction Does Not Burden More Speech Than Necessary

There is no support in the record for the district

court's conclusion that the restriction does not burden more speech

than necessary to achieve the City's interest in preventing

excessive noise. See Ward, 491 U.S. at 802 (upholding regulation

that was not substantially broader than necessary). Neither in the

district court's opinion nor in the record is there any explanation

of why the alternative advanced by the plaintiffs -- enforcement of

the City's noise ordinance -- would not have achieved the City's

interests as effectively as the amplification ban, while

substantially diminishing the burden on speech. This approach is

in sharp contrast to Ward, where the Court cited specific

alternatives the City had rejected and its reasons for doing so.

In Ward, the Court explained that New York had rejected

the idea of a fixed decibel limit for all performers using the

bandshell "because the impact on listeners of a single decibel

level is not constant, but varies in response to changes in air

temperature, foliage, audience size, and like factors." Id. at

786. The city had also rejected the idea of using its own
6 Indeed, when appellants were cited for excessive noise in

June of 1999 it was for violating the noise ordinance, rather than

the no-amplification restriction on their license. 

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technician to operate equipment supplied by the performer, "because

the city's technician might have had difficulty satisfying the

needs of [performers] while operating unfamiliar, and perhaps

inadequate, sound equipment." Id.; see also Globe Newspaper, 100

F.3d at 190 ("Designing the newsracks to better 'blend in' . . .

would promote the Commission's interest by reducing their

'unsightliness.' It would not achieve, however, as effective a

reduction in 'the visual clutter . . . .'"). By contrast, the

district court's opinion gives no indication as to why the City of

Newport could not have relied on the noise ordinance to achieve its

objective.

We do not see how the "substantially broader than

necessary" determination could be made in this case absent some

consideration of the alternative of enforcing the noise ordinance.

Far from being a hypothetical possibility conjured up by

appellants, the noise ordinance is on the books, is unmistakably

designed to address the problem of excessive noise, and has been

enforced against A&O in the past. There is no indication in the

record that such enforcement is not effective in achieving the

City's noise-reduction objective.6

We emphasize, however, that the City need not prove that

the no-amplification restriction is the least restrictive means of
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achieving its objective of controlling excessive noise. Any such

requirement is clearly proscribed by the precedents. Ward, 491

U.S. at 798. However, if enforcing the noise ordinance would

effectively achieve the City's noise-reduction objective, and the

burden on speech imposed by the no-amplification restriction is

substantially broader than the burden that would be imposed by

enforcing the noise ordinance, the no-amplification restriction may

not meet the narrow tailoring test. 

Inescapably, the application of the narrow tailoring test

entails a delicate balancing judgment by the court. See Blount v.

SEC, 61 F.3d 938, 946 (D.C. Cir. 1995) (regulations of speech must,

"by virtue of the narrow tailoring requirement . . . , strike an

appropriate balance between achieving [the government's] goals and

protecting constitutional rights"); Henderson v. Lujan, 964 F.2d

1179, 1184 (D.C. Cir. 1992) ("Despite the seemingly mathematical

character of the metaphor, the Supreme Court in fact applies [the

narrow-tailoring requirement] as a balancing test . . . ."). First

Amendment plaintiffs often argue that a regulation sweeps too

broadly and that less burdensome alternatives are available to

accomplish the government's objective. The government responds

that the proposed alternatives would be less effective in achieving

its objective. The trial court is then required to balance the

competing interests under the narrow-tailoring standard, mindful

that the government is not required to choose the least intrusive
-19-

means of advancing its interests. Here, however, the court did not

engage in any balancing analysis, deferring instead to the

unsupported assertion of the City that the no-amplification

restriction in A&O's license was the only effective means of

addressing the noise problem. 

The City calls to our attention Carew-Reid v.

Metropolitan Transportation Authority, 903 F.2d 914 (2d Cir. 1990),

which held that a ban on the use of amplifiers on New York City

subway platforms was narrowly tailored to the city's interests in

"elimination of excessive noise" and "public safety" (the concern

was that amplified music interfered "with police communications,

the public address system . . . and the work of track crews"). Id.

at 917. The district court had enjoined enforcement of the ban,

finding that "the goal of noise reduction could be achieved by

enforcing the 85 decibel limit" applicable to musical performances

on subway platforms. Id. The Second Circuit held that the

district court had "improperly relied on the perceived availability

of a less-restrictive alternative to the amplifier ban -- the use

of decibel meters." Id. at 917-18. It explained that the proposed

alternative would be impractical: "The noise regulation requires

that decibel measurements be taken at a distance of five feet from

the music's source. The difficulties in making such measurements

on a crowded subway platform with riders rushing on and off trains

are apparent . . . ." Id. at 918. 
7 Carew-Reid does assert that Ward "makes clear that the

less-restrictive alternative analysis has no part in the review of

a time, place or manner regulation." Id. We believe this

reasoning reflects a misreading of Ward, which rejected any

requirement that the means chosen be the least restrictive. 491

U.S. at 798. Ward does not say that the existence of less

restrictive alternatives plays no part in the narrow tailoring

analysis. Indeed, we said in Globe Newspaper that the existence of

"numerous and obvious less-burdensome alternatives ... is certainly

a relevant consideration," just not a controlling one. 100 F.3d at

189-90 (quoting City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410, 418 n.13 (1993)).

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Although a crowded subway platform in New York City seems

far removed from a residential neighborhood in Newport, Rhode

Island, there might be practical problems or administrative burdens

that complicate the enforcement of a noise ordinance in this

quieter setting. Such considerations are certainly relevant in

evaluating whether a proposed alternative would effectively achieve

the City's objective. See id. However, this record is silent on

any practical problems or administrative burdens that would render

enforcement of the noise ordinance an ineffective alternative to

the no-amplification restriction.7 

Nevertheless, the dissent states that the record

establishes that "the noise ordinance clearly failed to address the

community's concerns and, as such, cannot be considered an

effective alternative." Respectfully, that is not so. The

scattered references to the Noise Ordinance at the City Council

meeting on June 9, 1999 where the license restrictions were adopted

do not amount to evidence that enforcement of the noise ordinance
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was considered and rejected as ineffective. Here is the sum and

substance of these references:

C Councilor Sardella, questioning the requirement

that an applicant list the specific types of

instruments that performers would be permitted to

play, said: "entertainment is entertainment and

as long as someone doesn't violate the noise

ordinance I don't believe we should be

restricting them to whether they have a flute

player, a guitar player, or a vocalist."

C Casey explained that "it was my fault last Friday

that we went over the . . . noise ordinance"

C Doug Stevenson (a neighbor) said: "I don't even

think it's an issue of violation of any Noise

Ordinance, it's just the fact that we didn't have

this noise before and now we do and we have to

deal with it and we don't like it."

C Ms. Tarigo (unidentified) said: "last week so we

could adhere to that City ordinance of the

decibels of 65" (the language that precedes these

words is illegible).

As we have explained, at the district court the burden

was on the City to show that the no-amplification restriction did

not burden substantially more speech than necessary to achieve the

City's noise-reduction objective. See Fox, 492 U.S. at 480. The

City did not meet this burden simply by submitting evidence that

the noise ordinance was mentioned at the meeting at which the noamplification restriction was adopted. Indeed, the City itself has

not argued -- either in its motion for summary judgment or on

appeal -- that the Council considered the alternative of enforcing

the noise ordinance and concluded that it would be ineffective.

Nor has the City supplemented the record of the Council meeting
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with evidence supporting its view that the no-amplification

restriction is narrowly tailored, as it was free to do at the

district court. 

The dissent is correct that residential neighbors were

unhappy about the noise emanating from A&O. However, it is mere

speculation to say that enforcing the noise ordinance was an

ineffective alternative to the no-amplification restriction when

there is no indication in the record that the City had made any

attempt to enforce it beyond the one incident documented in the

record.

iv. Casey Could Still Convey Her Message Without Amplification

As its final basis for concluding that the ban on

amplification was narrowly tailored, the district court stated

that appellants "could still convey their respective messages,

but . . . without the aid of an amplifier." Appellants respond,

with the support of uncontradicted affidavits, that amplifiers are

not used simply to take a "message" and make it louder while

holding constant its content. To be sure, amplification may be

necessary to convey a message, and appellants advance the argument

that amplification is required for Casey's voice to be heard over

the chatter of A&O's patrons. However, as appellants point out,

amplifiers are also used to create new "messages" that cannot be

conveyed without amplification equipment. Amplification enables

performers to boost the relative volume of quiet instruments, such
8 The use of amplification to adjust the relative volume and

tonal qualities of voices and instruments is called "mixing."

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as the bass and the lower registers of the human voice, and to

adjust the tonal qualities of voices and instruments without

necessarily increasing the overall volume of the performance.8

Much modern music simply cannot be performed without the use of

amplifiers. Thus the ban on amplification has a direct and

immediate effect on the expression at issue. The record therefore

does not support the district court's conclusion that appellants

"could still convey their . . . messages" without amplification.

Without amplification, some of the messages are not conveyed at

all. 

The Supreme Court observed in Ward that "[i]f the city's

regulatory scheme had a substantial deleterious effect on the

ability of bandshell performers to achieve the quality of sound

they desired, [plaintiff's] concerns would have considerable

force." 491 U.S. at 801. The Court emphasized that there was no

evidence in the record that the quality of performances had been

impaired by the City's regulatory scheme. On the contrary, it

declared that "the city's guideline has no material impact on any

performer's ability to exercise complete artistic control over

sound quality." Id. at 802. Here, in contrast, there is evidence

of a "deleterious effect" on the "quality of sound" Casey has been

able to produce. Indeed, the regulation precluded outright the
-24-

performance of certain songs that require her to sing quietly in a

low register with amplification.

In sum, we conclude that the district court erred in its

application of the Ward test for narrow tailoring to the facts of

this case. The record does not support the district court's

conclusion that the City's means were not substantially broader

than necessary to achieve the government's interest. 

3. Alternative Channels

Although the failure of the record to support the

district court's conclusion that the no-amplification restriction

is narrowly tailored to serve a significant governmental interest

requires that we vacate the judgment below, we nevertheless note

that the ban on amplification at A&O does "leave open ample

alternative channels of communication," and thus satisfies the

third prong of the Ward test. 491 U.S. at 790 (internal quotation

marks omitted). Appellants assert unpersuasively that "[t]here is

no alternative for Laurel Casey to find a means to convey her

artistic message to an audience of over 90 people on a Saturday

night in a restaurant in Newport without having the benefit of an

amplifier." However, the restrictions imposed on performers at A&O

do not prevent Casey from performing at other establishments in

Newport unencumbered by the same restrictions.
-25-

B. No Amplification of Instruments

The district court held that appellants lacked standing

to challenge the restriction on amplification of instruments (but

not singing) that has been in force since 2000. In the district

court's view, which the City reflects in its brief, Casey and A&O

are endeavoring to challenge the no-amplification restriction "on

behalf of" other musicians. We disagree with this characterization

of appellants' claims, and hold that both Casey and A&O have

standing to assert violations of their own First Amendment rights.

"The basic requirements for Article III standing are that

the petitioner is someone who has suffered or is threatened by

injury in fact to a cognizable interest, that the injury is

causally connected to the defendant's action, and that it can be

abated by a remedy the court is competent to give." Save Our

Heritage, Inc. v. FAA, 269 F.3d 49, 55 (1st Cir. 2001). As a

singer who performs with a band, Casey's "expression" encompasses

more than just her voice. It is the music she produces in

conjunction with her band that constitutes her expression. If the

quality of Casey's performance has been affected by the ban on the

amplification of her accompanists, she has suffered an injury in

fact to a cognizable interest (her interest in performing her music

as she wishes to perform it); the injury is causally connected to

the restriction the City placed on A&O's entertainment license; and

the district court has the power to remedy the injury (by enjoining
-26-

enforcement of the restriction on amplification of instruments).

Casey therefore has standing to challenge the restriction on the

amplification of instruments. See id.

A&O also has standing to challenge the restriction on the

amplification of instruments. If, as appellants allege, the

restriction has impaired the quality of Casey's performances, A&O

has suffered an injury in fact to a cognizable interest (a

reduction in the quality of the entertainment it offers its

customers); the injury is causally connected to the restriction on

its entertainment license; and the district court has the power to

remedy the situation (by declaring the restriction

unconstitutional). See id.

Despite concluding that appellants lacked standing to

challenge the ban on amplification of instruments, the district

court went on to declare that even if appellants did have standing,

its analysis of the total ban on amplification applied equally to

the ban on amplification of instruments. We have held that the

district court erred in finding that the total ban on amplification

was narrowly tailored to serve a significant governmental interest.

We conclude likewise with respect to the ban on amplification of

instruments. In restating its conclusion about the total ban on

amplification, without additional analysis, the district court

repeated its error of neglecting to consider the viability of the

less-burdensome alternative of enforcing the City's noise
9 For the reasons given in connection with the total ban on

amplification, the ban on amplification of instruments does satisfy

Ward's content-neutrality prong.

10 As we have explained, "[t]he principal inquiry in

determining content neutrality . . . is whether the government has

adopted a regulation of speech because of disagreement with the

-27-

ordinance. We therefore remand to the district court for

consideration of appellants' challenge to the no-amplification-ofinstruments restriction under the framework described in this

opinion.9

C. No Singing

The district court found that the no-singing restriction

in force for two weeks in June of 1999 was a valid regulation of

speech. Casey and A&O argue that the no-singing restriction was

"facially invalid," as it "had the effect of utterly suppressing

Ms. Casey's right to perform." They also assert that there is no

rational basis "for discriminating between one form of instrument,

the human voice," and "other instruments such as pianos and

guitars."

Frankly, we can make little sense of appellants' facial

invalidity argument, at least as they express it. They seem to

argue that a ban on singing could never be permissible under any

circumstances. Stated so sweepingly, that is an untenable

proposition. Appellants also make an equally unavailing argument

that the no-singing requirement is not content neutral, hoping to

invoke strict scrutiny.10 See Arkansas Writers' Project, 481 U.S.
message it conveys." Ward, 491 U.S. at 791. The district court

found that

the [City] did not place the "no singing" restriction on

[A&O's] entertainment license because it disagreed with

the message plaintiffs sought to convey. Rather, the

[City] imposed the restriction . . . in order to address

the complaints defendants received from [A&O's]

residential neighbors concerning the excessive and

disturbing noise emanating from the restaurant during the

late night hours.

Appellants point to nothing in the record suggesting that the nosinging restriction was motivated by the content of Casey's

performances, or by specific animus toward singing as opposed to

other forms of musical expression. We therefore agree with the

district court that the restriction is content neutral.

-28-

at 231 (requiring state to show that content-based regulation of

speech is "necessary to serve a compelling state interest" and

"narrowly drawn to achieve that end") (citation omitted). However,

appellants do seem to argue, barely, that the no-singing

restriction suffers from the same narrow-tailoring infirmities that

afflict the restrictions on amplification. Based on our analysis

supra, we conclude that the record does not support the district

court's holding that the no-singing restriction is narrowly

tailored to serve a significant governmental interest. Thus the

no-singing restriction too must be addressed by the district court

on remand.

III.

To meet the narrow tailoring requirement set out in Ward,

the City was required to establish that the challenged restrictions

do not burden substantially more speech than necessary to achieve
-29-

its interest in noise reduction. The City has failed to carry its

burden on this point. The record is devoid of any explanation of

why the alternative of enforcing the City's noise ordinance -- an

alternative that is on the books, is designed to address the

problem of excessive noise, and has been enforced against A&O in

the past -- would not have achieved the City's objective as

effectively as the amplification ban, while placing a substantially

lesser burden on speech. Absent some evidence of this in the

record, the district court had no basis for deciding whether the

challenged restrictions are, or are not, substantially broader than

necessary to achieve the City's objective. 

We conclude, therefore, that the district court erred in

its application of the test for narrow tailoring established in

Ward and applied in Globe Newspaper, and hence the judgment entered

for the City must be vacated. However, there is no basis in law

for ordering the entry of judgment for appellants. The proper

narrow-tailoring analysis remains to be done and, depending on the

outcome of that analysis, damages issues must be resolved. We

therefore remand to the district court for further proceedings

consistent with this opinion.

Judgement vacated. Remanded for further proceedings

consistent with this opinion.

- Concurring and Dissenting Opinions Follow -
-30-

McAULIFFE, District Judge (concurring). I agree with and

concur in Judge Lipez’s reasoning and conclusion -- that the record

requires further development and additional narrow-tailoring

analysis remains to be done. However, I am less confident than

Judge Lipez that the City of Newport’s amplification ban is content

neutral. The record discloses that the City’s sole intent in

imposing the license restrictions at issue here was to limit the

volume of sound emanating from Asterix & Obelix, in an effort to

accommodate its residential neighbors. But, by banning all

amplified music, the City effectively, albeit unwittingly, banned

a whole host of musical instruments and, necessarily, the unique

musical messages that can only be produced by those instruments.

And, ironically, the ban will not necessarily insure an acceptable

level of noise control -- Casey could, for example, sing to the

accompaniment of snare drums, but not amplified flutes. 

In the world of modern music, “amplified” is not

synonymous with “made louder.” Electronic musical instruments can

only produce sound through a process of electronic amplification,

but those instruments are not inherently louder than acoustic or

unamplified instruments. A modern synthesizer, for example, can

make sound only by means of electronic amplification, yet that

amplified instrument easily and faithfully mimics the sounds

produced by a wide range of acoustic instruments such as pianos,

harps, flutes, acoustic guitars, violins, drums, etc. Moreover,
-31-

the synthesizer can reproduce those musical sounds as softly and

quietly as desired. Yet, the synthesizer falls within the City’s

ban. An electronically amplified Aeolian Harp can produce the same

“soft floating witchery of sound” as nature’s own, but the volume

is more easily controlled on the amplified version.

So, while the City did not impose the amplification ban

because of any overt disagreement with the messages conveyed by

amplified musical instruments, thus, arguably, making the ban

content neutral, I believe the ban is sufficiently over-reaching to

give rise to what the Supreme Court referred to in Ward v. Rock

Against Racism, 491 U.S. 781, 792 (1989), as an argument of “much

force,” i.e., that the City has impermissibly interfered with the

artistic judgment of performers at A&O. In Ward, the Court noted

that “[a]ny governmental attempt to serve purely esthetic goals by

imposing subjective standards of acceptable sound mix on performers

would raise serious First Amendment concerns . . . .” Id. at 793.

Here, the City’s regulation of expressive activity within A&O may

well not be content neutral because it appears to impose subjective

standards of instrument selection on performers and may not be

“justified without reference to the content of the regulated

speech,” id. at 791 (quoting Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984)), notwithstanding the absence of

official disagreement with the artistic messages conveyed by

amplified instruments. See Police Dept. of Chicago v. Mosley, 408
-32-

U.S. 92 (1972) (holding that picketing ban imposed to prevent

disruption of school was not content neutral when the ban allowed

picketing on some topics but not others); Carey v. Brown, 447 U.S.

455 (1980) (same). 

The governmental regulation in Ward was not intended to,

and did not in fact, interfere with artistic expression. But here,

the regulation singles out certain musical instruments and thus

“has a direct and immediate effect on the expression at issue,” by

suppressing it, and does so without any apparent justification,

given the substantial disparity between the ban’s expansive reach

and the noise-control interests the ban purports to serve.

With that reservation -- that the license restriction may

not be content neutral -- I join in Judge Lipez’s opinion.
-33-

TORRUELLA, Circuit Judge (Dissenting). With due respect,

I disagree with my colleagues regarding whether the licenses in

question are narrowly tailored. While the majority correctly

recounts the holdings of both Ward v. Rock Against Racism, 491 U.S.

781 (1989), and Globe Newspaper, Co. v. Beacon Hill Architectural

Commission, 100 F.3d 175 (1st Cir. 1996), it overstates the burden

for finding that a time, place, and manner restriction is narrowly

tailored. In fact, despite pronouncements to the contrary, the

majority essentially elevates the narrowly tailored requirement to

something approaching a least restrictive means test by requiring

that proposed alternatives always be considered. The majority also

ignores crucial evidence in the record which supports the district

court's finding that the licensing requirement was narrowly

tailored. My own review of the evidence and the relevant law leads

me to the conclusion that the City has met its burden of showing

that the licenses are narrowly tailored.

The majority understands Globe Newspaper as imposing a

requirement on courts to consider less burdensome alternatives in

deciding whether a challenged regulation is narrowly tailored. In

fact, the court did say, as the majority points out, that "lessburdensome alternatives must be considered." 100 F.3d at 190.

However, this statement can only be understood in context. In

Globe Newspaper, the district court had found that a general ban on

street furniture, including newspaper racks, in Beacon Hill was not
11 A similar situation confronted the Supreme Court in Ward.

There, New York City specifically considered a variety of solutions

to its excessive noise problem and rejected all of them as

ineffective. 491 U.S. at 785-87.

12 I further note that it is very unlikely that such a

challenge could survive, given that such schemes are generally

within a city's powers. Fantasy Book Shop, Inc. v. City of Boston,

652 F.2d 1115, 1121 (1st Cir. 1981) (holding that "licensing of

routine commercial operations in an attempt to limit noise, traffic

and disruption is clearly within a state's constitutional power").

-34-

narrowly tailored because less burdensome alternatives existed.

100 F.3d at 188. In overturning that decision, the court pointed

out that those alternative regimes had been considered and rejected

as ineffective. Id. at 188-89.11 Simply, the lower court rested

its decision on the availability of alternative regulations and

ignored ample evidence showing that those alternatives were

ineffective. It was against this background that the court

commented that less-burdensome alternatives must be evaluated to

see whether they are as effective as the challenged scheme.

Here, the situation is very different. Appellants do not

challenge the City's enactment of a general licensing scheme

regulating entertainment establishments.12 Rather, appellants

complain about the City's specific refusal to grant A&O a more

comprehensive entertainment license. As part of that challenge,

appellants point to the City's noise ordinance, positing that its

enforcement would be a less-burdensome alternative to a license

which covers only certain forms of entertainment. There is no
13 The record does suggest that the City had addressed its

concerns about noise pollution in another forum: a Noise & Nuisance

Task Force. The reference to this task force is fairly ambiguous,

and neither side presents further information about its conclusions

or its actual purpose. Furthermore, there is no suggestion, by

either side, that this task force dealt specifically with the

problem posed by A&O. From the limited information available, it

appears that this task force addressed only general concerns.

-35-

evidence, or even a suggestion, that the City actually considered

utilizing the noise ordinance instead of the licensing scheme when

it came to A&O.13 This is entirely predictable. The controversy

over A&O's application arose at a City Council meeting when the

City considered the renewal of annual entertainment licenses for

the coming year. It was not in the context of deciding what

regulatory regime would best balance noise pollution reduction

against allowing full artistic expression. To exempt A&O from the

normal licensing scheme, in favor of utilizing the noise ordinance,

would have been a strange result, to say the least.

Furthermore, existing law does not generally support the

proposition that alternatives must be considered when deciding

whether a regulation is narrowly tailored. In Knights of Columbus,

Council No. 94 v. Town of Lexington, 272 F.3d 25 (1st Cir. 2001)

(hereinafter Knights of Columbus), a local group brought a

challenge to a regulation that totally banned the erection of

unattended structures on the historic town green. Id. The

plaintiffs-appellants suggested that the town could have achieved

its purpose with less restrictive alternatives. Id. at 32.
-36-

However, the court concluded that the town did not have to

implement or experiment with alternatives before employing a total

ban. Id. at 33. In contrast to the limited restrictions in this

case, Knights of Columbus presents a fairly extreme regulation.

Nevertheless, the town's failure to consider alternatives did not

lead the court to find the regulation unconstitutional.

In fact, the appropriate inquiry is not whether

alternatives exist, which the regulating body must show are

ineffective. Rather, the inquiry is whether "the State's

articulated rationale actually supports restrictions placed on

particular conduct." New England Council of Carpenters v. Kinton,

284 F.3d 9, 27 (1st Cir. 2002); accord Gun Owners' Action League,

Inc. v. Swift, 284 F.3d 198, 212 (1st Cir. 2002) (upholding a ban

on using human-shaped targets at certain gun clubs under

intermediate scrutiny without considering less restrictive

alternatives); Knights of Columbus, 272 F.3d at 33. Certainly,

that inquiry can include an examination of the alternatives

considered by regulating body, see, e.g., Globe Newspaper, 100 F.3d

at 188-89, but not every case requires such an inquiry. This is

one such case.

The record clearly shows that the City limited A&O's

license in response to neighborhood complaints about excessive

noise. In fact, despite these complaints, the City gave A&O the
14 Originally, the City did place an additional restriction

on A&O's license by forbidding singing. However, the record is

clear that this restriction was lifted shortly after it was imposed

and that it was imposed on the mistaken belief that the prior

license had not included permission for a vocalist.

-37-

same license it had in the prior year.14 The City just refused the

request for an expanded license. The record supports only one

inference: that the City balanced the interests of A&O against

those of its neighbors. This was entirely appropriate. See Nat'l

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 744 (1st Cir.

1995) ("[The regulation] promotes the substantial government

interest of preserving tranquility--an interest that, as [the

town's] past experience demonstrates, would not be achieved as

effectively absent the regulation.").

Furthermore, even if I were to adopt the majority's

conclusion that the City must show that available alternatives were

ineffective, I would find that the City has met its burden. The

majority concludes that "the City gave no explanation as to why it

could not have relied on this less-burdensome alternative

[enforcing the noise ordinance] to the no-amplification

restriction." Actually, the record clearly shows that the noise

ordinance was ineffective. A&O had violated the noise ordinance

only once, but the neighbors complained about incessant noise. One

neighbor told the City, "So, I don't even think it's an issue of

violation of any Noise Ordinance, it's just the fact that we didn't

have this noise before and now we do and we have to deal with it
15 Contrary to the majority's assertion, I do not find that

the City considered and rejected the noise ordinance as

ineffective. Rather, I simply find that the noise ordinance is

ineffective, apart from any consideration by the City.

-38-

and we don't like it." The noise ordinance clearly failed to

address the community's concerns and, as such, cannot be considered

an effective alternative.15

While believing the record clearly shows that the noise

ordinance is ineffective, I reiterate my earlier point: the City

only needs to show that the issued licenses were narrowly tailored

to the problem and not that all available alternatives are

ineffective. Regardless of the standard employed, the City clearly

meets its burden, and the judgment of the district court should be

affirmed. Therefore, I respectfully dissent.